TMI Blog2008 (10) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee within a prescribed period of one year and, second, raising the issue regarding merits of additions made by the AO and sustained by the CIT(A). 2. At the outset of the appellate proceedings, learned Authorised Representative for the assessee submitted that he does not want to press second ground relating to the issue of addition on merits and the same may be dismissed as not pressed. In this view of the matter, the ground No. 2 of the appeal of the assessee involving the issue on merits is rejected as not pressed. 3. In order to dispose of the legal issue involved in ground No. 1 of the assessee's appeal we are required to decide the following points : First, whether the AO is able to establish the service of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrovert the averments of the assessee contained in the affidavit dt. 19th Jan., 2006. 6. From these facts as discussed above, we find that in the instant case, the Revenue has failed to prove the statutory notice issued under s. 143(2) of the Act within 12 months from the end of the month in which the return has been filed by the assessee as provided under the proviso to s. 143(2) of the Act. Hence, we are of the opinion that any assessment framed by the AO under s. 143(3) of the Act without the service of notice under s. 143(2) of the Act within the statutory time-limit of 12 months is liable to be held as invalid and required to be quashed. 7. In our above view, we find support from the following decisions. 7.1 In the case of V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the period of limitation of 12 months, i.e., on or before 31st Oct., 2002. Therefore, the assessment completed by the AO was in violation of the statutory provision of s. 143(2) and was liable to be quashed. 7.4 In the case of CIT vs. Lunar Diamonds Ltd. (2005) 197 CTR (Del) 312: (2006) 281 ITR 1(Del), their Lordships of Hon'ble Delhi High Court held, dismissing the appeal, that the assessee had filed an affidavit stating that it had not received the notice and the Tribunal rightly held that under these circumstance, the burden was upon the Department to prove that notice was served upon the assessee within the prescribed time. The Department had failed to prove its case in this regard. The Tribunal was right in setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the service of notice under s. 143(2) was very much thereupon the Revenue. In this very order, the Tribunal further held that' it is well settled that a notice under s. 143(2) has to be served upon the assessee and mere issuance of notice within a period of 12 months is not sufficient. The Tribunal also held that' As the Department had not been able to demonstrate that the notice under s. 143(2) was served upon the assessee within 12 months from the date of furnishing of the return, the assessment made on the basis of such invalid notice could not be treated to be a valid assessment and hence such assessment order was to be treated as null and void ab initio and was liable to be quashed and annulled. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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